Opinion
E052391 Super.Ct.No. FBA700262
02-29-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVON TRANELL JOHNSON, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Arguing that the trial court violated his right to due process, Davon Tranell Johnson (defendant) contends (1) that his sentence for torture in the beating death of his seven-week-old son should be stayed pursuant to the provisions of Penal Code section 654, and (2) that the sentence for that charge should be modified to eliminate the seven- year determinate segment. We disagree and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Defendant's son Z.J. (Z.J. or the baby) was born May 15, 2007. On July 4, 2007, defendant took care of him alone for about eight hours during the day. Z.J. was riding in his car seat when defendant took his wife M.W., the baby's mother, to work at "McDonald's Barstow Station." When M.W. got out of the car to begin her 2:00-10:00 p.m. shift, Z.J. was alert and happy and had no bruises or other apparent injuries. When defendant came to pick M.W. up at the end of her shift, Z.J. was again in his car seat, but covered up with a blanket. Defendant told M.W. "Don't be mad, but the baby fell." When M.W. removed the blanket, she saw that his upper lip was swollen and bruised and he appeared limp and unresponsive. M.W. asked defendant why he had not taken Z.J. to the hospital when the fall first happened; defendant replied that he had been scared. From McDonald's, they went straight to the emergency room at Barstow Community Hospital.
At the hospital, medical staff observed Z.J. to be lethargic. His breathing pattern became progressively abnormal; his brain appeared to be bulging through his fontanelle;his face was swollen and bruised; he had injuries inside his mouth; he had a bite mark on his arm. "His entire torso was a bruise." X-rays showed multiple rib fractures in various stages of healing, a broken clavicle, and a possible fracture of the pelvic bone. A brain scan showed swelling consistent with trauma.
The fontanelle is the soft spot on the top of an infant's head. A bulging fontanelle indicates increased pressure inside the head.
Because of the severity of his injuries, Z.J. was transferred to Loma Linda Children's Hospital about three and a half hours after he arrived in the Barstow emergency room. After nine days in the intensive care unit at Loma Linda, on July 13, 2007, he was declared brain dead. On July 14, 2007, he was removed from life-support equipment.
Meanwhile, a few hours after the incident, defendant waived his Miranda rights and spoke to Police Detective Andrew Espinoza. Defendant said he had been trying to clean the house while his wife was at work, but the baby kept crying. The crying frustrated defendant. "It's hard to get things done when the baby's crying." Defendant became angry and threw or dropped Z.J. down onto the bed "two times" during the day. When defendant dropped Z.J., the baby's neck "popped back." "I just get him and I drop him you know with his neck." Defendant had squeezed the baby's chest and stomach "Probably like four times. I mean . . . five." He "sucked" Z.J.'s cheek and lip, bit him, hit him in the stomach and chest, shook him, and was generally "careless" and "rough" with him. "I kept putting him down and I kept going back cleaning and I kept trying to attend to him and I just couldn't after a while so I just quit it." Eventually, Z.J. became quiet and defendant became scared: "He was awoke but he looked dead." Defendant shook the baby in an effort to awaken him. Defendant admitted to Espinoza that he had caused all of Z.J.'s injuries. An audiotape and transcript of Espinoza's interview with defendant were later admitted into evidence at trial.
Miranda v. Arizona (1966) 384 U.S. 436.
July 4, 2007, was only the second time defendant had taken care of Z.J. alone. About three weeks earlier, when the baby was about four weeks old, he had sustained an eye injury when defendant was alone with him for about three hours while M.W. ran errands and went to church. When she returned home, defendant had said, "[D]on't be mad, but something's wrong with his eye." Defendant said he believed something had gotten into the baby's eye while he was bathing him. M.W. later testified that Z.J. had been born with blood in his eye, which had been clearing, but which now "was engulfing like his whole eye. All the white in his eye." M.W. and defendant took Z.J. to an emergency room where they were given medicine for his eye. The doctor there took x- rays of the baby, but did not say anything about any fractures and released him with instructions to follow up with Z.J.'s pediatrician.
On September 15, 2008, the District Attorney of San Bernardino County filed an information charging defendant with torture (§ 206.1, count 1), and assault on a child causing death (§ 273ab, count 2). Jury trial began on September 16, 2010.
Detective Espinoza, M.W., Barstow Community Hospital nurse Wendy Ferraro and emergency room physician Dr. Nader Abas, Loma Linda University forensic pediatrician Dr. Amy Young, and San Bernardino County forensic pathologist Dr. Frank Sheridan, were among the witnesses who testified at the 14-day trial. Nurse Ferraro and Dr. Abas testified as to Z.J.'s condition when he arrived at Barstow Community Hospital.
Dr. Young testified about the head-to-toe injuries she observed when she examined Z.J. at Loma Linda, and to her review of his entire record, including imaging studies. Her examination had revealed extensive bruising of the infant's neck, chest, abdomen, buttocks, and penis; multiple fractures of his ribs, clavicle, legs, and pelvic bones; numerous bites; and evidence of severe head injuries. All of the injuries, including the various fractures, would have been very painful. She described the brain injury as "catastrophic." In Dr. Young's opinion, the extent and nature of the injuries were inconsistent with the history of a fall off a bed.
Dr. Sheridan testified about autopsy findings which confirmed the injuries which had been observed when Z.J. was alive. There were injuries to the baby's mouth and lips; his scalp and neck were swollen; his skin had a [mottled] appearance with bruising and abrasions in various places; he had a healing laceration injury on his right thumb; he had what appeared to be a bite mark on his right arm; his left hand had "a set of injuries" on the fingertips that also appeared to be bites; there was a fracture at the end of one of the bones of his leg; there were multiple fresh rib fractures as well as two old healing ones; there was a bruise on the lung; there was bleeding, a "subdural hemorrhage" covering most of the brain, as well as hemorrhage within the brain tissue; and there were retinal hemorrhages in both eyes.
The Reporter's Transcript has what appears to be a typographical error, describing the skin as "bottled."
Rib numbers two through nine on the left and two through seven on the right had fresh fractures, for a total of 13.
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Dr. Sheridan identified the cause of death as "'abusive head trauma' . . . not accidental." The mechanism of the brain injury, he said, was consistent with an intentionally inflicted acceleration/deceleration shaking, "combined with slamming the child against something." It could not have been caused by a fall from a bed onto a carpeted floor or a pillow. In the doctor's opinion, the various injuries Z.J. sustained before he lost consciousness from the head trauma were not fatal. However these other injuries, "specifically the fractures," would have been painful.
On October 6, 2010, after two days of deliberation, the jury convicted defendant of both charges.
At sentencing on November 5, 2010, the prosecutor argued that the final, fatal head injury to which the pathologist had testified was separate from the numerous other injuries defendant had inflicted over the course of the day and from the older injuries evidenced by the fractures in various stages of healing identified on x-ray and confirmed by autopsy. Defense counsel argued that all the injuries had been inflicted in "a compressed time frame" and with a single objective: "to persuade the baby to be quiet."
In pronouncing sentence, the court noted that "the jury could reasonably have found that the older injuries were torture, the acts that would be the torture along with the actual day of the incident in which [Z J.] was basically beaten and shaken with a brain injury. [¶] So with that in mind, because it's - it could be seen as two separate events, the Court's going to impose consecutive sentencing on Count 1 and Count 2." Over a section 654 objection by defense counsel, the court then identified count 2 as the primary count and sentenced defendant to 32 years to life for assault on a child causing death, plus 7 years to life on the torture conviction. This appeal followed.
DISCUSSION
Defendant first complains that the sentence on count 1 should have been stayed pursuant to section 654.
Section 654 and the Standard of Review
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) "Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) If a defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) When the offenses are "'separated by periods of time during which reflection was possible,'" section 654 does not prohibit multiple punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689, quoting People v. Trotter (1992) 7 Cal.App.4th 363, 368.) The fact that multiple criminal acts occur close to each other in time is not dispositive in determining whether they comprised an indivisible course of conduct. (Trotter, supra, at pp. 367-368.)
In reviewing a section 654 challenge, an appellate court applies a substantial evidence standard of review. "'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' [Citation.]" (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
Analysis
Defendant argues here, as he did below, that the many injuries he inflicted on Z.J. over eight hours on July 4, 2007, constituted a single course of conduct motivated by a single intent, and that it was this one "act" that provided the basis for both his convictions: assault on a child causing death (§ 273ab) and torture (§ 206). Defendant emphasizes that there was no proof that the jury relied upon the older injuries he may have inflicted on Z.J. before that date in reaching its verdict on the torture conviction, as suggested by the court in its statement at sentencing. Thus, he concludes, his sentence for torture should have been stayed under section 654. Defendant's argument misses the point.
Firstly, the trial court's statement including the old injuries as evidence that the jury might have considered in reaching its decision on the torture charge did not exclude defendant's acts of July 4, 2010, as a basis for that conviction. The court said only that the old injuries "along with the actual day of the incident in which [Z.J.] was basically beaten and shaken with a brain injury[]" supported the conclusion that there had been separate acts supporting its decision to impose separate sentences. Defendant himself admitted that the earlier acts were designed to make the baby be quiet, while the shaking was done in an effort to wake him up.
Secondly, notwithstanding the trial court's reference to the older injuries, their presence was irrelevant to the question of whether, during the eight hours he cared for Z.J. on July 4, 2007, he committed a series of acts which amounted to torture and whether the assault which led to the baby's death on that date was a separate act. We believe it was. Certainly the episodes of beating were separated by periods of time during which reflection was possible. Defendant told Detective Espinoza that he stopped several times during the day while cleaning and vacuuming the house, attempted to quiet Z.J., returned to cleaning, then resumed attending to the baby when he began crying again.
Thirdly, substantial evidence showed that the cause of Z.J.'s death was the head injury; while the many separate injuries he suffered on July 4, 2007, were painful, they were not fatal. All three physician witnesses testified as to life-threatening nature of the head injury. The forensic pathologist testified, unequivocally, that it was the blow to Z.J.'s head that killed him. It was this final, separate assault on the child that resulted in his death, the basis for his conviction under section 273ab.
As defendant points out, torture is commonly considered a course of conduct crime. And his course of conduct over the eight hours during which he inflicted a variety of injuries on his infant son—biting, squeezing, punching, and breaking bones before shaking him and slamming him against something—supported the torture conviction under section 206.1.
Finally, in his interview with Espinoza, defendant described different reasons for the acts against his son. The earlier blows were delivered in an attempt to persuade the baby to quit crying. The shaking was done to make the baby wake up. In the end, defendant succeeded in reaching only his first objective. The baby did quit crying.
The seven-years-to-life prison term
Defendant also complains that the trial court erred in imposing an indeterminate seven-year-to-life sentence for torture. The People respond by asserting that, since under section 3046 "No prisoner imprisoned under a life sentence may be paroled until he or she has served . . . [a] term of at least seven calendar years[,]" the court properly included the minimum in the sentence. (§ 3046, subd. (a)(1).) The People support their position by citing the California Supreme Court's statement in a footnote in People v. Jefferson (1999) 21 Cal.4th 86, 101, fn. 3 (Jefferson). A careful reading of that case, and the statement in the footnote leads us to agree with the People, despite defendant's argument that the statement is "dicta" and thus not binding.
Defendant is correct that whether a section 3046 minimum should be included in a straight life sentence was not the major issue in Jefferson. That was a three strikes case concerned with whether the seven-year minimum specified by section 3046 applied to enhancements. But the case nonetheless sheds light on the question here. The Jefferson defendants argued "that the sentence for attempted premeditated murder does not have a minimum term, because section 664, the relevant penalty provision, does not mention service of any minimum term, stating only that the punishment is 'imprisonment in the state prison for life with the possibility of parole.'" (Jefferson, supra, 21 Cal.4th at p. 96.) Our Supreme Court held, however, that "the minimum term for a defendant found guilty of attempted premeditated murder is found not in section 664 but in section 3046." (Ibid.) In our view, the same reasoning applies to the minimum term for a defendant found guilty of torture.
In its analytic footnote the Court considered the precise argument regarding section 3046 that the People make in our case: whether a trial court exceeds its jurisdiction by including the minimum provided for by section 3046 in its oral pronouncement of a life sentence. "The Attorney General contends that . . . it is not improper for the trial court to include, as part of a defendant's sentence, the minimum term of confinement the defendant must serve before becoming eligible for parole . . . and we agree with the Attorney General. By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole." (Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.)
It is true that the court could have simply imposed a straight life term and the net effect would have been the same. But it did not exceed its authority by explicitly incorporating the seven-year minimum term into the sentence. Although under section 206.1 the specified term for torture is a straight life term, it is "not improper" for the trial court to include in a defendant's sentence the minimum term of confinement he must serve before becoming eligible for parole. (Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.) Accordingly, we leave defendant's sentence unchanged.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P.J.
KING
J.